A Bedford County judge is admonishing the district attorney's office for having three cases involving crimes against children end without a verdict, in the span of a few months.
In two of the cases, the accused individual cannot be retried, due to "double jeopardy" rules, which means they are walking free. One of them, President Judge Travis Livengood said, has evidence of intentional misconduct by the prosecution.
The situation began in April during the trial of Jerry Drake, who was charged with corruption of minors and indecent assault against a 15-year-old girl.
Court records show that Assistant DA Johnathan Thomas reportedly asked a state trooper if Drake had ever been brought into the barracks for a polygraph exam.
That information is not permissible in court, according to the judge, so the case was declared a mistrial and is set to be heard again in September.
Last month, Judge Livengood threw out the case against Brian Harris, who was charged with raping a 12-year-old girl, because more than a year had passed from the time Harris was charged until the prosecution was ready to take the case to trial.
Judge Livengood noted in his ruling that the DA's office made “no attempt to argue any time that could have been excluded, which he says could have prevented the dismissal of charges,” and added that “this argument was never made and we refuse to argue the case for the District Attorney.”
Then the case Judge Livengood had the strongest words for, which was dismissed on August 2nd, was against Jerry Williams, who had been charged with involuntary deviate sexual intercourse with an 8-year-old girl.
His trial in May had been declared a mistrial during the last witness to testify.
During the trial, according to court documents, A.D.A. Thomas reportedly asked a trooper not only if Williams was interviewed, but why he wasn't, which the judge said, “any competent prosecutor would know those questions would cause a mistrial,", especially for one that had a mistrial under similar circumstances a month earlier.
Judge Livengood also noted that at that moment, he watched as District Attorney Lesley Childers-Potts was looking down at her cell phone.
She said it was to read the criminal complaint and tell a trooper to not file criminal charges, but the judge said that was still a problem.
Last week, the judge ruled that the prosecution's actions were not only reckless, enough ground to throw out the case entirely, but potentially intentional.
Judge Livengood says the explanations Thomas and the DA's office gave were "absolutely nonsensical — and inconsistent,” and, at worst, were an attempt to hide a more nefarious intentional reason for causing the mistrial, adding, “if a prosecutor were to cause a mistrial because of a poorly tried case, we would expect it to come at the exact moment as happened here.”
In response to all of this, District Attorney Lesley Childers-Potts said in a statement, “In all three of these cases, my biggest concern, my biggest regret is how these circumstances may have affected the victims involved. There is nothing I can say to adequately express my sadness and disappointment in how these cases have been resolved.”
The DA further elaborated on her statement, providing a more in-depth explanation for each, individual case.
Jerry Williams
As prosecutors and police officers, we are aware that we are held to a higher standard. We accept that as part of our positions, but that also sometimes means we are not judged in a way that would typically be considered fair. We are frequently the target of criticism. We know that comes with the territory and we accept it. That doesn’t always make it easy to endure. We are still human, subject to making mistakes at times. We do our best to avoid making mistakes. We also learn from our mistakes. We are honest in what we present to the Court. We are a team and we will continue to work hard every day to seek justice for victims and strive to represent the county with integrity.
Jerry Drake
Although the Drake case is mentioned in the Williams decision, along with the contention that the Drake mistrial was a direct result of a badly worded question from ADA Thomas, the Commonwealth disputes the contention. The question posed by ADA Thomas was a fair question designed to obtain a legally admissible response. However, the response provided by the officer included information that he should not have mentioned. ADA Thomas did not intentionally or negligently illicit the specific response provided, despite how it may have been characterized by the Court. The Drake case is scheduled for trial. The necessary parties are aware of what occurred, how it happened and the new trial dates. Because the case is still pending and scheduled for jury selection, the Commonwealth will not comment further.
Brian Wilson
This case was dismissed following a Rule 600 hearing. The Commonwealth disagrees with many of the characterizations in the opinion issued by the presiding Judge. The Judge attempts to place blame exclusively on the District Attorney’s Office for the Rule 600 violation, but his contention that such a serious case could be prepared and successfully brought to trial in such a short period of time is an unrealistic expectation. Once charges were filed against the defendant and an arrest warrant was issued, it is the responsibility of the arresting agency to make every attempt to locate the defendant and serve the warrant. Unfortunately, the arresting officer was promoted and transferred to another station not long after charges were filed. As a result of significant staff change over at the Bedford station of the Pennsylvania State Police, this arrest warrant did not get served in a timely fashion. That is what caused the issue to arise and is the primary reason for the Rule 600 violation. The testimony introduced during the hearing made that clear. An attempt to place blame exclusively on the District Attorney’s Office is not taking all factors into consideration and is an obvious attempt to cast as much blame on the DA’s Office as possible, despite what testimony and other facts may have indicated. The one thing in the opinion that the Commonwealth agrees with is that the District Attorney’s Office did not make argument to contradict what the defense presented. There was an obvious Rule 600 violation, and the District Attorney was unwilling to argue that a violation did not occur.
There is no word on if the courts will take any further action against the prosecutors in this situation.
Even if that were to happen, the disciplinary board of the Supreme Court of Pennsylvania does not make records public until there is a resolution in the case, and only if there are serious penalties.